State v Laha (No 2) [2021] PGNC 262; N9007 (11 June 2021)

N9007

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 419 OF 2013

THE STATE

V

ELIAS WAKORE LAHA
(No 2)

Kimbe: Batari J
2021: 7^th, 9^th & 11^th June

CRIMINAL LAW – murder – sentence – prisoner shot and killed deceased with home-made gun in a clan fight – seriousness of – mitigation – de facto provocation – sentencing guidelines – 16 years imprisonment appropriate.

Cases Cited:
Papua New Guinea Cases

Anna Max Marangi v The State (2002) SC702
Anta Yala v The State [1996] SCR 69
Jack Tanga v The State [1999] SC 602
Simon Kama -v- The State (2004) SC740
Manu Kovi v The State (2005) SC789
Rex Lialu v The State [1990] PNGLR 487

Overseas Cases Cited

R v Phillips (1985) 7 Cr App R (S) 23

Counsel

Mr L. Rangan, for the State

Mr D. Kari, for the Accused

SENTENCE

11^th June, 2021

1. BATARI J: Elias Wakore Laha, you are back in Court today to receive your punishment following your trial on wilful murder and conviction on the alternative verdict of murder. You shot and killed Jackson Goru with a firearm. The prescribed maximum sentence for murder under s 300 (1)(a) of the Criminal Code is life imprisonment. This is your sentence.
   
2. The circumstances of the killing are set out in my written judgment. In brief, on the morning 31 October 2012 at Buludawa village, Talasea, WNB Province, a fight broke out between your Komana clan and the deceased’s Gira clan. The fight followed from an earlier quarrel in the previous night when members of the Gira clan trespassed onto your area in pursuit of their in-law and threw objects at him and at the home of one Jeffery Nuli. Abusive exchanges between the two clan members followed before the Gira group retreated, hoping to settle the conflict the next day.
   
3. How the fight continued the next morning is unclear. However, I deduce from the whole of the evidence, the situation was still tense from the previous night’s incident and that both sides were apprehensive of an attack by the other. It is clear, your group took the fight to the Giru clan area in reprisal and chased Gira clan members to the beach. From the sketch plan of the scene, Jackson Goru was shot and killed at or near the beach. Police investigator estimated he was shot from 15 to 20 meters.
   
4. The medical report showed the deceased sustained two gunshot wounds. One shot penetrated his left ventricle (lung) and exited the right ventricle. Another entered the spleen. Paul Goru died at the scene.
   
5. The intention to cause the deceased grievous bodily harm was open on the whole of the evidence. You shot at Jackson Goru from a long distance albeit, you had the opportunity to shoot a Gira clan member closest to you at point blank, if you had harboured the intention to kill. Too, you shot the deceased from the side which indicates an indiscriminate shooting. At the highest, the court found in the circumstances, an intention to cause grievous bodily harm. Because the victim died, the appropriate verdict is murder.
   
6. Any type, form or manner of unlawful killing remains the most serious breach of the criminal law of this land. The ultimate penalty of death for wilful murder and the penal servitudes of life imprisonments for murder and manslaughter killings under the Criminal Code are intended to protect the right to life. And the penalty provisions carry strong warnings, that those who unlawfully kill will meet with severe punishment.
   
7. In sentencing, the court is guided by the maximum penalty and settled principles governing each type of killing. Over the years the Supreme Court has progressively reviewed and prescribed sentences for unlawful killings starting with the case of, Rex Lialu v The State [1990] PNGLR, 487 for different types of manslaughter killings. The range of sentences proposed in that case was reviewed by the Supreme Court in, Jack Tanga v The State [1999] SC 602, Anta Yala v The State [1996] SCR 69, Anna Max Marangi v The State SC 702. In Simon Kama -v- The State (2004) SC740 the Supreme Court came up with revised guidelines and the following year, the often-cited case of Manu Kovi v The State (2005) SC789 suggested a further but similar approach to homicide sentencing.
   
8. I have had regard to those cases and the suggested guidelines. I bear in mind, that sentences for murder will normally be lower than sentences for wilful murder. However, in the most serious cases where murder is charged because of plea bargaining, any further reduction of sentence maybe inappropriate. Nevertheless, those convicted of murder will expect to meet with increased severity in sentencing. In the worst-case scenario, the maximum penalty of life imprisonment may be justified.
   
9. The increase in sentences has come about due to the escalation and growing trend of killings committed in varying type, form, and degree of violence. In Manu Kovi v The State the Supreme Court suggested sentencing guidelines for 4 types of murder killings are as follows:
   

“1. In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a sentence of 16 – 20 years imprisonment.

3. In a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20 – 30 years.

4. In contested or uncontested cases, the maximum of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons substances; summary execution style killings; killings in full view of public without regard for the safety and lives of others, etc. These are cases where there are no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime.”

10. These prescribed guidelines reinforce the basic sentencing principle that the sentencing authority must have careful regard to the circumstances of death and the way in which death was caused. His Honour Kapi DCJ (as he then was) alluded to this in Rex Lialu v The State at p.497:
    

"In considering the penalty for manslaughter cases, I adopt the words of Watkins LJ in R v Phillips (1985) 7 Cr App R (S) 235 at 237.

'The Court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about.'" as stated in R v Phillips [1985] CR APP (RS) 235 at 237.”

11. In this case, your group attacked the deceased and his clan members in reprisal following their invasion of your section of the village the previous night. Their sudden attack led to undue disturbances of your privacy and peaceful enjoyment of sleep. You were in effect provoked. This explains rather than excused your conduct. It is a factor that mitigates your conduct.
    
12. You were aged 30 years at the time of the incident which makes you 39 this year. This is your first offence. You are married with a large family of seven children, the eldest being 21 and the youngest, 5. Your children are at Buludawa village with your old father and a sister. You also spoke of the recent death of your mother while you were on remand and three brothers who have also died following the incident. It is not known if the deaths related to the death of Jackson Goru.
    
13. You are well educated having completed Grade 12 and progressing into the workforce with Hugo Cannery for some four years and New Britain Palm Oil Ltd for a year before settling back at your Buludawa village. All these go to support a good background.
    
14. From 2013 you have intermittently been in custody for the aggregated time of 2 years, one month mainly due to breaches of your bail conditions. This will be deducted from the head sentence I will shortly impose.
    
15. Your lawyer, Mr Kari has urged the Court take into account, payment of compensation of K15,000.00 cash, a pig worth K1,000.00 and 200 param (fathom) of traditional shell, “Rea” valued at K2,000.00 to the relatives of the deceased. There is no independent verification of the compensation payment. However, I give you the benefit of the doubt as the State does no not dispute this factor.
    
16. Against you is the first consideration that unlawful killing is such a prevalent crime of violence, it is frowned upon and despised by many who treasure the sacredness of the human life. The unlawful termination of the human life itself violates the sanctity of God’s creation. Jackson Goru had the right to live just like every other man, woman, and child, do. No-one has the right to take away that right. Your conduct not only breached the constitutional right to protection of life, but you also broke the law when you took the law into your own hands. I accept that you were provoked in the non-legal sense. But you had ample time to exercise self-control and restraint. You were foolish, you chose unwisely.
    
17. You used a weapon, namely a firearm replica to kill the deceased. It is a notorious fact from the number of cases coming before this court, that a gun of any make and type is increasingly used in confrontations between parties over both minor and serious issues. Deaths have become all too common and frequent these days when guns are readily used in conflicts.
    
18. It is clear to me; people are resorting to use of firearms and other offensive weapons against their adversaries without the slightest regard for the consequences of breaking the law after all these years of governmental and Christian influences. Attitudes must change. Common sense should prevail. People ought to embrace humility, respect and restraint. Only then, in my view, we may expect fewer cases of unlawful killings.
    
19. You have asked for probation for the sake of your family. First, murder killings rarely attract non-custodial sentence. Secondly, you did not consider the welfare of your family when you embarked on your evil enterprise. And there is no special feature of your case that will warrant such sentencing option. Had you pleaded guilty you would have been entitled to the benefit of the plea, supported your good background, your expression of remorse and the fact of de facto provocation.
    
20. The crime itself though serious, is not the worst of its kind. I agree with the lawyers that it falls into the second category of Manu Kovi v The State. The suggested range of sentence is 16 years to 20 years. The term which I propose to impose is intended to serve both the deterrent and retributive aspects of sentencing. An imprisonment term sentence of 16 years is in my view, warranted in all the circumstances of the case.
    

25. You are sentenced to 16 years imprisonment with hard labour. The term is reduced by the period spent in custody being, 2 years and 1 month. You will serve the balance of 13 years and 11 months IHL.

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused